The California Coastal Commission and Beach Access: The Necessity for Overriding City and County Ordinances Banning the Use of Short-Term Vacation Rentals in the Coastal Zone

§ 30210: In carrying out the requirement of Section 4 of Article X of the California Constitution, maximum access and recreational opportunities shall be provided for all the people consistent with public safety needs and the need to protect public rights, rights of private property owners, and natural resource areas from overuse;³

§ 30211: Development shall not interfere with the public’s right of access to the sea (emphasis added).⁴

§ 30213. Lower cost visitor and recreational facilities; encouragement and provision; overnight room rentals: Lower cost visitor and recreational facilities shall be protected, encouraged, and, where feasible, provided. Developments providing public recreational opportunities are preferred. The commission shall not: (1) require that overnight room rentals be fixed at an amount certain for any privately owned and operated hotel, motel, or other similar visitor-serving facility located on either public or private lands; or (2) establish or approve any method for the identification of low or moderate income persons for the purpose of determining eligibility for overnight room rentals in any such facilities (emphasis added).⁵

In 1972, California voters approved Proposition 20, the “Coastal Initiative” as a precursor to permanent enactment of the 1976 Coastal Act.⁶ The proposition focused on protecting ecological diversity, fishing and agriculture, and maintaining beach access and recreational use in the Coastal Zone. Proposition 20 advanced and implemented the public’s constitutional right of access to the coastline beaches and recreational area pursuant to article X, section 4, of the California Constitution,⁷ established the CCC as the administrative agency and principal actor pursuant to the Federal Coastal Zone Management Act of 1972, which grants authority to the states for controlling development within U.S. coastal areas. After four years of legislative debate, expert testimony, and stakeholder collaboration, the California legislature enacted the California Coastal Act of 1976. The California Coastal Act implements the federal Coastal Management Act’s consistency goals and policies.

In Pacific Palisades v. City of Los Angeles, the California Supreme Court reinforced its thirty-year-old decision in Yost v. Thomas,⁸ holding that the Coastal Act was enacted to comprehensively protect an area of critical state concern:⁹

[The Coastal Act] was enacted by the Legislature as a comprehensive scheme to govern land use planning for the entire coastal zone of California. The Legislature found that ‘the California coastal zone is a distinct and valuable natural resource of vital and enduring interest to all the people’; that ‘the permanent protection of the state’s natural and scenic resources is a paramount concern’; that ‘it is necessary to protect the ecological balance of the coastal zone’ and that ‘existing developed uses, and future developments that are carefully planned and developed consistent with the policies of this division, are essential to the economic and social well-being of the people of this state. . . .’ The Coastal Act is to be “liberally construed to accomplish its purposes and objectives.”¹⁰

In recent years, acknowledging the growth of short-term vacation rentals in the coastal areas and providing visitor access to the beaches through the rise of Airbnb,¹¹ the CCC has sought to protect the public access and rental housing goals and policies of the Act by raising objections in public hearings to local zoning ordinances enacting interim development ordinances,¹² permanent moratoria, bans or exclusion of STVRs from residential zoning districts within the Coastal Zone.¹³ This response is particularly applicable where the local government had enacted the zoning ordinance without CCC certification of a local coastal plan, or the issuance of a required Coastal Development Permit (appealable to the CCC) for ordinances decreasing the density or intensity of use in the coastal zone.

A confusing aspect of the Coastal Act is the inter-mixing of the definitions and acronyms used in court decisions, local coastal programs, local land use plans, local coastal elements of the general plan, coastal local use plans and local coastal plans.¹⁴

• Land Use Plan. California Public Resources Code § 30108.5 defines a Land Use Plan as: “Land use plan” means the relevant portions of a local government’s general plan, or local coastal element (of the General Plan), which are sufficiently detailed to indicate the kinds, location, and intensity of land uses, the applicable resource protection and development policies and, where necessary, a listing of implementing actions.
• Local Coastal Program. California Public Resources Code § 30500(a): “The Coastal Act encourages state and local initiatives and cooperation in preparing procedures to implement coordinated planning and development . . . in the coastal zone.” (§ 30001.5, subd. (e)) Toward that end, the Coastal Act requires each local government lying within a coastal zone to “prepare a local coastal program for that portion of the coastal zone within its jurisdiction.” (§ 30500, subd. (a)) A local coastal program (LCP¹⁵) comprises “a local government’s (a) land use plans, (b) zoning ordinances, (c) zoning district maps, and (d) within sensitive coastal resources areas, other implementing actions, which, when taken together, meet the requirements of, and implement the provisions and policies of, this division at the local level.” § 30108.6.; see also the Attorney-General letter opinion dated February 18, 2018: “Although multiple local governments, including Hermosa Beach, have not adopted local coastal programs, they are nonetheless still subject to the provisions of the Coastal Act.” (Pub. Resources Code § 30003) (emphasis added). Such confusion appears in Gov’t Code § 65800: “It shall be a mandatory requirement that a city or county prior to exercising any of the above local programs over coastal area land uses and development, shall prepare a local coastal plan and program” (failing to distinguish that the local coastal plan is part of the local coastal program).
• Local Coastal Plan refers to the city or county local coastal element of its General Plan which is incorporated within the local coastal program along with all local implementing ordinances and actions.”¹⁶

II. Johnston v. City of Hermosa Beach

The CCC’s inconsistent course of action arose in responding to a restrictive ordinance enacted by the city of Hermosa Beach in July 2016, which banned all STVRs in the city’s residential zoning districts within the coastal area but which permitted STVRs in commercial districts. The ordinance was enacted despite CCC’s written objections submitted at the public hearings.¹⁷ Despite the CCC’s objections, when the ban was enacted, the CCC failed to initiate a civil injunction action against Hermosa Beach or by intervening as a party in an equitable injunction action brought by aggrieved STVR homeowners to enjoin enforcement of the ordinance.¹⁸

The preliminary-injunction motion asserted that, without having prepared an LCP certified by the CCC authorizing such a ban, the ordinance was void by reason of conflict preemption with the statutory policies of the Coastal Act; and, by lessening the density or intensity of STVR use, the ordinance constituted a “development,” requiring the city to issue a Coastal Development Permit (CDP) appealable to the CCC.¹⁹

The failure of the CCC to intervene in the Johnston case, even as amicus curiae, enabled the Court of Appeals, Second Appellate District, to uphold the unconstitutional evasion of the Coastal Act by a city acting without having issued a CDP (subject to appeal to the CCC)²⁰ or receiving a prior CCC certification of an LCP authorizing a ban on STVRs.²¹ The Court of Appeals misread California Public Resources Code § 30512.2, providing in part that “the commission is not authorized by any provision of this division to diminish or abridge the authority of a local government to adopt and establish, by ordinance, the precise content of its land use plan, by failing to include a key provision preceding the portion, it quoted:

(a) The commission’s review of a land use plan shall be limited to its administrative determination that the land use plan submitted by the local government does, or does not, conform with the requirements of Chapter 3 (commencing with Section 30200).²²

The Attorney General, acting on behalf of the CCC, compounded the problem by belatedly seeking amicus curiae status in the Johnston case only after the Court of Appeals opinion had been written, opposing publication of the opinion, rather than requesting the Court of Appeals en banc to reverse the decision or petition the Supreme Court to reverse the decision.²³

The Attorney General opinion letter sent to the Court of Appeals as amicus, on the issue of rejecting publication motions brought by city and county associations, strongly asserted that the city of Hermosa Beach was preempted by the Coastal Act to bar STVRs in the coastal areas where the city had neither prepared nor obtained a certified LCP nor issued a CDP.²⁴

The CCC engaged in similar reluctance to intervene in Surfrider, where the CCC appeared solely as amici curiae²⁵ on the appeal of a trial court order, to object to a court issued injunction requiring a coastal landowner to open public access to the beach that theoretically could have resulted in a judicial or quasi-judicial taking against the state trial-court judge and the CCC. The Court of Appeal in Surfrider avoided such a judgment against the CCC by overruling the Superior Court order holding that there was a taking, on the basis that the private owner had failed to exhaust his administrative remedies by not applying for a CDP.

The rationale of the CCC for this questionable practice of objecting to ordinances banning STVRs in the coastal zone at legislative hearings but failing to enforce those objections by pursuing injunctions in the courts is difficult to determine. It could possibly derive from two scenarios: (1) a fear that injunctions against local governments could lead to judicial or quasi-judicial takings judgments requiring compensation from the CCC;²⁶ or (2) fear of lobbying from city and county governments and associations seeking amendments to the Coastal Act, further transferring and accelerating power to local government to bar STVRs without having prepared a CCC-certified LCP, or reviewing on appeal from a CDP.²⁷

Since the unpublished Johnson Court of Appeals decision is of no binding legal effect, except to the unfortunate plaintiffs in the case,²⁸ the Attorney General Opinion letter, Douda, Yost, and the Kracke and Surfrider decisions conclusively establish that neither cities nor counties can enact bans on STVRs in coastal zones without authorization from a certified LCP or issuing a CDP for the ordinance as a “development” appealable to the CCC.

Nevertheless, subsequent to the Johnson decision, and supported by a recent student article that reaches the same conclusion as the Johnston decision without citing Johnston,²⁹ the attorney general opinion letter in Johnston and the 2017 Kracke and Surfrider decisions; and the cities of Del Mar³⁰ and Laguna Beach,³¹ subsequent to Surfrider, have passed bans on STVRs in the state’s coastal zones. The city of San Diego, having passed a similar ban, reluctantly repealed it following a ballot referendum petition to repeal the ordinance that was heading for a citywide vote.³²

III. Short-Term Vacation Rentals

Over the past nine years, the number of STVRs, and other housing that facilitates the “share” or “accommodation” economy, has grown rapidly throughout the United States. This increase has been largely assisted by websites such as Airbnb, on which homeowners may advertise their homes or parts thereof to rent to vacation travelers. Airbnb has a never-ending battle with government interference with—or banning of—short-term rentals.³³

The rapid rise of Airbnb has jolted the conventional hotel industry, as well as neighboring single-family homeowners. Residents of traditional single-family homes are often opposed to the increased numbers of transient renters, and these residents complain about noise, late night partying, drug and alcohol use, trash, crime, odors, lighting, and other alleged nuisances,³⁴ creating a loss of the “sense of community,” as if, magically, rentals for thirty days or more within the same structures do not present such problems. STVRs have also come under criticism that such rentals may contribute to the removal of otherwise affordable housing units.³⁵

Responding to such neighborhood criticism, STVRs are often prohibited or regulated at the local government level through zoning and public nuisance laws, but effective enforcement is difficult due to the decentralized and Internet-based nature of the STVR industry in locations across the city or county.

In coastal areas of California, the situation differs because local planning and regulation of STVRs are controlled by the requirements of the Act. The Act “superimposes upon the planning, zoning and building regulation functions of counties and cities mandatory requirements.”³⁶ The Act lays out state goals and policies³⁷ for the coastal zone that then must be implemented at the local level. Before regulating STVRs, coastal cities and counties (“local governments”) must prepare and assemble land use plans, zoning ordinances, and maps for their coastal zone into a local coastal plan (LCP), which must then be certified by the California Coastal Commission (Commission) for conformity with Coastal Act goals and policies.³⁸ The only exception to the certification of an LCP is the authority of a local government to adopt genuine public nuisance ordinances.³⁹

Once the LCP is certified, local governments may adopt zoning regulations or approve coastal development permits (CDPs) for projects, so long as the regulation “conforms” with the Act’s goals and policies as administratively interpreted by the Commission. The only statutory exception permits local governments to adopt public nuisance regulations without adopting a CCC-certified LCP, but the nuisance ordinance may not constitute a pretext to avoid its obligation to prepare and receive certification of an LCP.⁴⁰

In its Johnston opinion, the Court of Appeal—contrary to the Dana Point decision— authorized cities allegedly acting under their home-rule powers, in lieu of their nuisance powers, to evade the beach-access requirements of the Coastal Act by enacting zoning ordinances banning STVRs without having submitted an LCP and having it certified as being consistent with the Coastal Act’s Policies, or issuing a CDP requiring CCC approval on appeal. It is clear that by the principles of statutory interpretation no ordinances can be enacted that are inconsistent with the LCP and the goals and policies of the Coastal Act. In La Fe, Inc. v. Los Angeles County, 73 Cal. App. 4th 231, 239, 240 (1999), where the Court of Appeal held:

“[I]n construing a statute, a court [must] ascertain the intent of the Legislature so as to effectuate the purpose of the law.” In determining that intent, we first examine the words of the respective statutes: “If there is no ambiguity in the language of the statute, then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.” “Where the statute is clear, courts will not ‘interpret away clear language in favor of an ambiguity that does not exist.” If, however, the terms of a statute provide no definitive answer, then courts may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. “We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.” The commission’s construction of the statute is entitled to great weight.⁴¹

Since the Coastal Act expressly authorizes the CCC to enact its own LCP where the municipality has not prepared one, the clear intent of the Act establishes that a city or county, without a certified LCP, cannot enact ordinances or issue CDPs in the coastal zone. In its unpublished opinion, the Court of Appeal erroneously found that “plaintiffs conceded in the trial court—and make no contrary argument here—that the Ordinance does not constitute a ‘development’ requiring a CDP.”⁴² In the light of the published Attorney-General opinion and the Kracke and Surfrider decisions holding that an ordinance banning STVRs in the coastal zone constitutes a “development” and requires a CDP subject to appeal to CCC, the Johnston unpublicized decision is simply erroneous as a matter of law.

Unpublished opinions are decisions that are not certified for publication in the Official Reports and may not be cited or relied on by other courts except by the parties seeking res judicata or collateral estoppel. After the Court of Appeal announced its unpublished decision, the California attorney general submitted a letter opinion dated February 12, 2018, requesting the Court of Appeal to deny a motion made by Hermosa Beach, and amicus curiae California League of Cities and California Association of Counties, to publish the opinion, in which the attorney general opined that the Hermosa Beach zoning ordinance was unconstitutional, being in direct conflict with the Coastal Act.

Since an unpublished opinion cannot be cited and is not binding on anyone other than the parties to the case, the attorney general’s Letter Opinion on behalf of the Coastal Commission declaring the unconstitutionality of the Hermosa Beach ordinance ordinances⁴³ means that the Banning, Dana Point, Douda, Kracke, Malibu, Pacific Palisades, and Surfrider decisions will prevail.

IV. The Planning Requirement

A primary issue in the Johnston case concerned the applicability of state preemption law to zoning ordinances that have not been previously embodied in a local coastal plan or plan amendment certified by the California Coastal Commission.

Since the Coastal Act contemplates that both the state, through the CCC, and cities and counties share responsibility for implementing the Act, a mechanism was needed to provide the linkage for that cooperation. The genius shown by the legislators, in enacting the Coastal Act, was to establish mixed state-local planning that allows a city or county to propose a plan suited to its own and state needs, but subject to the overriding state interest that the plan implement, not contradict, the goals, policies, and implementation strategies of the Coastal Act as promulgated by the CCC before certifying it.⁴⁴

The entire scheme for regulating the coastal areas lies in the preparation and certification of an LCP before any implementing action by the local government can occur. In Yost, the California Supreme Court held that, in the case of mixed state and local concerns under the Coastal Act, “the act establishes a regime of state regulation more intrusive than the local government planning and zoning law.⁴⁵ It not only sets forth statewide planning goals (Pub. Resources Code, § 30200 et seq.), but, unlike the Government Code planning law,⁴⁶ it dictates that the LCP required by the Act be approved by a state body, the Coastal Commission (id. § 30512), to be consistent with the Act.⁴⁷ The Supreme Court in Yost concluded: “There is no doubt that the Coastal Act is an attempt to deal with coastal land use on a statewide basis. That state planning requirement is mandatory before local government authority can be exercised.”⁴⁸ (emphasis added).

Pursuant to Banning, Dana Point, Douda, Kracke, Malibu, Pacific Palisades, and Surfrider, the Coastal Act describes two methods by which the CCC ensures that city or county zoning ordinances comply with the Act’s coastal goals and policies: (a) where a city or county prepares an LCP (including proposed zoning ordinances) and the Commission certifies the LCP as conforming with the goals and policies of the Act; or (b) if a local government does not have a certified LCP, or the CCC rejects certification of a proposed LCP, for inconsistency with the Coastal Act’s policies in Chapter 3, the CCC remains in charge over all city or county actions.⁴⁹

The CCC has three paths that it can follow pursuant to (b) above: (1) it can itself prepare and adopt an LCP for the city or county (as the Act specifically grants the CCC an optional mandate to create and adopt an LCP for cities and counties that have not adopted one, Pub. Res. Code §§ 30500, 30517.5; (2) it can exercise its appellate jurisdiction to review all CDPs and all other local actions pursuant to §§ 30602 and 30603; and (3) pursuant to §30116, in sensitive coastal resource areas (defined as including beach access and visitor accommodation), the CCC is obligated to reject developments that contravene the policies of the Coastal Act.⁵⁰

It has now been forty-three years since the California Coastal Act was passed, yet twenty-six coastal cities and counties still do not have a certified LCP,⁵¹ either because they have never submitted one or because their submissions have been denied by the Coastal Commission as not being in conformity with the policies of the Coastal Act. The role of the Coastal Commission in approving development (by enactment of ordinances or approval of development projects) varies depending on whether or not the locality has a certified local coastal program. Only after an LCP has been certified, does the coastal development permitting authority and legislative zoning power pass from the Coastal Commission to the local government.⁵²

With a few exceptions for emergency situations and governmental entities, “any person . . . wishing to perform or undertake development in the coastal zone . . . [must] obtain a coastal development permit.”⁵³ If a city or county does not have a certified local coastal program, development permits for that city or county can (in most cases) be issued by the Coastal Commission.⁵⁴ The proposed development must be in conformity with the policies of the California Coastal Act and not jeopardize the completion of a local coastal plan.⁵⁵

Once an LCP is certified, authority to issue coastal development permits for the areas covered by the plan passes to the city or county.⁵⁶ The city or county cannot, however, enact zoning ordinance amendments, or issue CDPs and other zoning permits for “development” that does not conform with the LCP.⁵⁷

The Act expressly states: “[T]he Commission shall require conformance with the policies and requirements of Chapter 3 . . . only to the extent necessary to achieve the basic state goals specified in Section 30001.5.”⁵⁸ The Act prescribes that “the precise content of each local coastal program shall be determined by the local government”⁵⁹ and that the program need not be “so detailed as to require amendment and commission review for minor changes.”⁶⁰

All permits for developments along the shoreline between the water and the nearest public road must also contain specific findings that the development conforms to the public access and public recreation policies of the Coastal Act.⁶¹ Given concentrations of vacation rentals near beaches, coastal views, and aquatic recreation, specific findings of consistency with the LCP are necessary for coastal development permits involving regulation of STVRs.⁶²

Local ordinances are theoretically free to impose additional restrictions and to reflect additional local concerns and priorities beyond those of the Coastal Act. Section 30005 of the Coastal Act states that “no provision of [the Act] is a limitation on . . . the power of a city or county or city and county to adopt and enforce additional regulations, not in conflict with this act, imposing further conditions, restrictions, or limitations with respect to any land or water use or other activity which might adversely affect the resources of the coastal zone.” In the words of the California Supreme Court, the city or county “can decide to be more restrictive with respect to any parcel of land, provided such restrictions do not conflict with the act.”⁶³ Nevertheless, a city or county cannot allow the enactment of legislation that conflicts with the Act’s policies.

V. State Preemption As Applied to the Coastal Act

The general principles governing state preemption of local regulation are well settled. Where otherwise valid regulations “conflict” with state law, they are preempted and are legally deemed unconstitutional and void. Under the principles of statutory interpretation,⁶⁴ four types of conflicts give rise to state law preemption: (1) state statutes that expressly or by legislative implication manifests that the state has “fully occupied” the field of regulation; (2) the local ordinance is contradictory or inimical by directly requiring what the statute expressly forbids, or prohibits what the statute expressly demands;⁶⁵ (3) the local legislation is duplicative or coextensive with the statute or general law; and (4) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the locality.

Due to the authority given to cities and counties after the LCP is certified, state preemption, under the Coastal Act, arises only in the third sense above, when local government regulatory, planning, and nuisance powers are in conflict with the Act as a general state law or inconsistent with the goals and policies of the Act as interpreted by the Commission in its quasi-legislative and administrative functions. Conflict occurs when a local government permits what is prohibited by the Act, or when it prohibits what is permitted by the Act.⁶⁶ Conflict is the operative factor when local governments, not field preempted, seek to ban STVRs.

Because of the powers reserved for local governments, the Coastal Act is not a field-occupying preemptive law under which local governments are able to act only where the Act does not prevent their doing so. The comprehensive nature of the Act has been consistently recognized and reaffirmed by case law, since at least the 1984 case of Yost v. Thomas, which held that the Coastal Act “was enacted by the Legislature as a comprehensive scheme to govern land use planning for the entire coastal zone of California.”⁶⁷ The California Court of Appeal has noted: “A fundamental purpose of the Coastal Act is to ensure that state policies prevail over the concerns of local government.”⁶⁸ Yost held that the Act does not occupy the entire field but instead leaves substantial authority to local governments with respect to preparing the LCP and regulating specific local actions through legislation and development approval as long as such implementation does not conflict with the Act and is consistent with the certified LCP. The Court specifically held that the Act contemplates “local discretion and autonomy in planning subject to review for conformity to statewide standards.”⁶⁹

Although the Coastal Act by its express terms does not occupy the field, it greatly empowers the Coastal Commission to implement the Act’s policies. As a creation of the state, the Coastal Commission is not bound by the “separation of powers” doctrine in reviewing local legislative decisions, and courts have accordingly held that it can and must do more than simply review local legislation “for arbitrary and capricious enactments” or “for conceivable conformity to the state standards rather than actual compliance.”⁷⁰ The Commission, instead, “must exercise its independent judgment to decide if such conformity has been achieved because that decision cannot be completely delegated to the local entity where it is likely to be subject to local economic and political pressures which cannot so readily influence the CCC.”⁷¹

In practice, this directive significantly restricts cities’ and counties’ ability to depart from state policies as interpreted by the Coastal Commission. According to an Opinion of the California Attorney General, section 30005’s allowance of local restrictions applies to local actions “not in conflict with the Act,”⁷² and a city or county may not lawfully prohibit a use of land permitted by a certified LCP without Commission approval, or allow a use that has been prohibited. As STVRs are not prohibited by the Act and the Coastal Commission has looked upon them favorably as being allowed and encouraged by the Act’s policies, this directive does not bode well for cities seeking to ban STVRs.59

The CCC’s position on STVRs for providing public recreational access is factually supported. Access to the California coast has become increasingly expensive when factors such as transportation, parking, and lodging are considered, threatening to make the beach and coast realistically inaccessible for poor and even middle-class citizens.⁷³ Such financial exclusivity, moreover, exacerbates geographical, cultural, and socioeconomic factors that have kept historically marginalized communities from enjoying coastal access.⁷⁴ Researchers have identified the high cost of accommodations near the coast as a major part of the accessibility problem.⁷⁵ The lack of affordable coastal lodging has garnered mainstream media attention, and state legislative efforts have been made to increase, rather than reduce, the coastal vacation lodging supply.⁷⁶

VI. Partial Restrictions on STVRs

Although California cities and counties cannot enact a total ban on STVRs, a wide range of limited regulatory options are still available. The CCC has historically supported limited regulation of vacation rental that provide for any or all of the following conditions:

• Limits on the total number of vacation rentals allowed within certain areas (e.g., by neighborhood or by communitywide ratios);
• Limits on housing types that can be used as a vacation rental (disallowing vacation rentals in affordable or quasi-public housing for veterans, the homeless, halfway houses, senior citizens and disabled persons);
• Limits on the maximum number of vacation rental occupancies during a given year for each unit;
• Limits on the number of days in a month that a residential unit can be used as a vacation rental;
• Requirements for twenty-four-hour management and/or response, whether on or offsite:
• Requirements regarding on and off-site parking, trash pickup, noise and light controls;
• Signage requirements, including posting twenty-four-hour contact information and restrictions on-site and within units incorporating operational requirements and default or violation consequences;
• Requirements for distance standards between STVR uses in areas of high volume and oversaturation in the neighborhood;
• Payment of transient occupancy tax; and
• Requirements for owners to respond to complaints and to enforce against violations of vacation rental requirements for government revocation of vacation rental permits.⁷⁷

These Coastal Commission views were published prior to Surfrider by at least one lower court in California, the Santa Barbara County Superior Court, which held in the recent case of Kracke v. City of Santa Barbara that, “[b]ut for the existence of STVRs with the City’s Coastal Zone, the segment of the public who use STVRs would be unable to access and enjoy the City’s Coastal Zone.”⁷⁸ The court accordingly concluded that after city actions to classify STVRs as hotels and restrict them to the city’s R-4 and commercial districts, “tens of thousands of people [were] being deprived of the option of staying at an STVR in the City’s Coastal Zone,” and that “the City’s implementation of the STVR ban and its broad enforcement efforts intentionally caused a substantial, direct, and quantifiable change in the density and intensity of use of the land and the intensity of use of water or access to the coast for potentially hundreds of thousands of visitors on an annual basis.”⁷⁹ The City’s actions, therefore, “amount[ed] to a ‘development’ under the Coastal Act and required a CDP, or alternatively, an amendment to the City’s certified LCP.⁸⁰

The Commission’s announcement of its views on limited regulation of STVRs is in conformity with many of its past decisions regarding LCPs that sought to ban or regulate STVRs.⁸¹ The City of Pismo Beach and Santa Cruz County provide illustrative examples, though many more are available. In 2016, Pismo Beach sought an amendment to its LCP, seeking to define STVRs (previously unaddressed in the LCP) and ban them from R-1, R-2, and R-3 residential zones in the coastal zone, instead limiting them to commercial and hotel zones.⁸² The Coastal Commission denied this amendment, finding that there was little other vacation housing in much of the coastal strip, and banning STVRs would thus be inconsistent with the public access policies of the Coastal Act.⁸³ The Commission noted that it had historically not approved LCP amendments that outright ban STVRs, but had approved regulations banning STVRs in specific areas based on rental supply and neighborhood capacity, such as those in LCP amendments for Imperial Beach, Humboldt County, San Luis Obispo County, and Santa Cruz County.⁸⁴

Santa Cruz County sought its LCP amendment in 2011 and, in contrast to Pismo Beach, did not seek to effectively ban STVRs, but instead sought to implement a number of limited regulations regarding STVRs, including a permitting/registration process, a Transient Occupancy Tax (TOT), signage requirements, a dispute-resolution process, limits on the number of guests allowed at any one time, and the number of vehicles allowed per vacation rental unit. This plan was approved by the CCC as a regulation that did not unduly restrict public access to the coast.⁸⁵

The Coastal Commission clarified its position:

[V]acation rental regulation in the coastal zone must occur within the context of your local coastal program (LCP) and/or be authorized pursuant to a coastal development permit (CDP). The regulation of short-term/vacation rentals represents a change in the intensity of use and of access to the shoreline, and thus constitutes development to which the Coastal Act and LCPs must apply. We do not believe that regulation outside of that LCP/CDP context (e.g., outright vacation rental bans through other local processes) is legally enforceable in the coastal zone, and we strongly encourage your community to pursue vacation rental regulation through your LCP.⁸⁶

Since “development” includes anything that “change[s] the density or intensity of use of land,” including zoning ordinances banning STVRs in the Coastal Act uses,⁸⁷ the published opinion in Surfrider overrides the non-published opinion of Hermosa Beach, where the city made such an argument. A 2016 ordinance in the city of Hermosa Beach made it “unlawful for any person to offer or make available for rent or to rent . . . a residential dwelling, a dwelling unit or a room in a dwelling for less than thirty (30) consecutive days,” or to “maintain any advertisement of [such a] rental.”⁸⁸ The Coastal Commission contacted the city and repeatedly warned that a CDP was necessary for such an ordinance and that such a blanket STVR ban was preempted by the policies of the California Coastal Act.⁸⁹ When litigation arose over the ordinance, however, the city erroneously argued that it did not need a CDP to pass the ordinance because “[t]he Act’s definition of ‘development’ does not extend to the adoption of a zoning ordinance of general applicability. Development means a ‘change in the density or intensity of use of land’ not a change in local law governing the density or intensity of use of land.”⁹⁰

The city also more broadly argued that the Coastal Commission does not actually have power over a municipality’s legislative actions. The city went so far as to claim that because the Coastal Act leaves it to the a municipality to determine the content of its own land use plans and only gives the Coastal Commission the power to enforce the Act’s policies, “if a city without a certified LCP were to amend its zoning code to permit strip mining, the Coastal Commission could deny a CDP [to a mine operator] if it found the proposed development inconsistent with Coastal Act chapter 3 policies,” but “cannot prevent that hypothetical (or any) city from adopting its own zoning rules or otherwise exercising its police powers.”⁹¹ It relied on somewhat dubious interpretation of Dana Point, claiming that “the Court of Appeal . . . found that the Coastal Commission’s authority is limited to quasi-judicial permitting functions. [T]he Commission does not adjudicate the City’s legislative prerogative.”⁹²

VII. Advertising

Many cities and counties see the increase in STVRs and associated problems as being driven by the rise of online marketplaces and hosting platforms, and have attempted to restrict or ban advertisement of STVRs on these platforms. The Hermosa Beach ordinance, for instance, not only banned STVRs themselves, but made it illegal to “maintain any advertisement of [such a] rental,” “whether in a magazine, newspaper, handbill, notice, display, billboard, poster, email, Internet website or application, or any other form,”⁹³ Such restrictions are intended to impose liability on Airbnb, Home Away, and other similar online STVR facilitators, which would no doubt be more effective in restricting STVRs than in attempting to enforce ordinances against individual rental operators. However, because these prohibitions on advertising amount to a content-based restriction on speech, they are on shaky First Amendment grounds and likely cannot survive a legal challenge.

Content based restrictions on speech are allowable only where they are necessary to serve a compelling government interest.⁹⁴ They are presumptively unconstitutional and justified only if the government proves they are narrowly tailored to serve the compelling government interests.⁹⁵ In the case of STVRs, it is unlikely that a compelling governmental interest is at stake, as such interests, analogous to those required for nuisance abatement, typically involve basic public-safety concerns.

Even if mitigating effects of STVRs are a compelling government interest, content-based restrictions, such as permanently banning STVR advertising, is impermissible, especially if content-neutral ordinances regulating STVRs may achieve the same ends. Both the United States and California Supreme Courts have held that advertisements for illegal activity have no free speech protection.⁹⁶

A further difficulty exists in regulating STVR advertising and hosting services on the Internet, where the vast majority of such services are to be found. Under the federal Communications Decency Act, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”⁹⁷ This provision prevents website operators from being liable for the actions of others using their websites. Importantly for cities and counties attempting to regulate STVRs, this law establishes that “no cause of action may be brought, and no liability imposed, under any State or local law that is inconsistent with the Communications Decency Act.”⁹⁸

The Communications Decency Act makes it difficult for websites to restrict or limit STVR hosting websites, without running the risk of costly federal litigation. The city of Anaheim in 2016 enacted a sweeping “Short-Term Rental Ordinance,” which not only banned STVRs from all zones in which residential uses were permitted but also imposed major restrictions on websites hosting advertisements for STVRs:

No hosting platform shall list or advertise a short-term rental for which the city has not issued a permit. Upon written or electronic notification from the city that the city has not issued a permit for a short-term rental which is listed or advertised on the Internet web site provided or maintained by a hosting platform, the hosting platform shall discontinue and remove the listing or advertisement within ten (10) calendar days from the transmittal date of the notification. The hosting platform thereafter shall not list or advertise the short-term rental without written certification from the city that the required permit has been issued . . . . A hosting platform shall not otherwise facilitate . . . the occupancy of a short-term rental if the occupancy will violate any ordinance, regulation or law of the city.⁹⁹

Having faced the prospect of federal Communications Decency Act litigation, the city decided not to enforce that portion of its ordinance against rental hosting websites.¹⁰⁰ By imposing requirements on hosting websites as though the website operators themselves, rather than their users, were “listing” or “advertising” the rentals, the city is treating the website provider as the speaker or publisher of the information, which is impermissible under the First Amendment and the Communications Decency Act.¹⁰¹

VIII. STVRs as Vested Non-Conforming Uses

Aside from being disfavored by Coastal Act policies, local government STVR bans also raise the prospect of creating a constitutional due-process or takings violation if existing STVRs with valid nonconforming use vested rights¹⁰² are barred.¹⁰³ Unlike nuisance abatement laws, zoning ordinances cannot destroy existing uses, but can prohibit these uses in the future. Unless the city succeeds in declaring STVRs a nuisance (as nuisance regulations are retroactive to destroy vested rights), existing STVR operators have vested rights that cannot be destroyed by any land-use or zoning ordinance the city enacts.¹⁰⁴

Governments have the constitutional power to limit land uses and allocate uses into different zoning districts.¹⁰⁵ Zoning may not, however, destroy “fundamental” or “vested” rights, (i.e., rights or uses the destruction of which would substantially deprive a property owner of his or her interest in the property). Rights or interests that have been held to be “vested” or “fundamental” cannot be impaired or affected by new legislation:

[T]he right of an owner of a vested interest in real property as to an agency action that substantially affects that interest (L&M Professional Consultants, Inc. v. Ferreira, 146 Cal.App.3d 1038 (1983)); and the right of an owner of a business as to an agency’s denial of a zoning change or permit approval that effectively prevents continuance of the business (Hansen Brothers Enterprises, Inc. v. Board of Supervisor, 12 Cal.4th 533 (1996)).¹⁰⁶

Prohibition of existing STVRs would substantially affect the interests of the owners of those existing houses and apartments, many of whom acquired their properties for the purpose of renting as STVRs.¹⁰⁷ An exception prevails if, at the time the nonconforming use was built or sprang into existence, the existing zoning ordinance had previously expressly prohibited the use.¹⁰⁸ In their answering brief to the motion for a preliminary injunction filed in the Superior Court in the Johnston case, Hermosa Beach argued that, since STVRs were not ever expressly permitted as a lawful use, they were prohibited.¹⁰⁹ No other case in California supports the doctrine that a lawful use is prohibited if not expressly permitted. Such a proposition is an absurdity.

STVRs, outside of the coastal zone, established after the zoning ordinance has expressly prohibited STVRs in their zoning district, will require variances to conduct their rental purpose. A variance is also used in zoning parlance for an application to establish an existing use as a non-conforming use.¹¹⁰ Under California law, a use not prohibited in the zoning ordinance at the time the nonconforming use sprang into existence will be granted vested-use status.¹¹¹

Similarly, the Telecommunications Act¹¹² mandates that state or local regulation, governing placement and construction of personal wireless service facilities, “shall not prohibit or have the effect of prohibiting the provision” of such services.”¹¹³ A showing of express prohibition is required. Simply demonstrating that the locality could provide services for such facilities is insufficient.¹¹⁴

An exception exists to finding substantive due process violations under both the U.S. and California Constitutions¹¹⁵ for immediate termination of preexisting use rights, if the government compensates through providing a reasonable period of amortization. The California Court of Appeal describes how a subsequent limitation on existing property uses could be a violation of due process:

Gage became vested with the right to use the property for the purpose that it was used; insofar as the Los Angeles Municipal Code purports to require the abandonment of the use of the building on Lot 221 as an office for the plumbing and plumbing supply business or the use of Lot 220 for the open storage of plumbing supplies in the manner that it has been and is being used by Gage, it is void and of no legal effect.¹¹⁶

Because of the constitutional difficulties in banning valid existing non-conforming uses, except where operation is a public nuisance, a provision exempting existing uses from new zoning requirements “is ordinarily included in zoning ordinances.”¹¹⁷ This exemption “may either exempt an existing use altogether or allow a limited period of continued operation for amortization of the owners’ interest in that use.”¹¹⁸ A city or county could prohibit, limit, or regulate the operation of a STVR or boarding rental in a single-family home located in a low- density residential (R-1) zone, outside the coastal zone.¹¹⁹

IX. Recommendations

To avoid further dispute over the powers of cities and counties to take any action to regulate land uses or permits in coastal zones without first preparing a local coastal program and plan certified by the CCC, it is recommended that (1) a new regulation be enacted by the CCC;¹²⁰ (2) the CCC request a new Opinion from the Attorney General, adopting the recent judicial decisions that have resolved that ordinances (constituting “development” or “CDPs”) banning STVRs in the coastal zone cannot escape CCC review, together with the Attorney-General Opinion letter of February 17, 2018, in the Johnston case; and (3) to further substantiate (1) and (2), the CCC should issue a new quasi-legislative rule; and (4) as a matter of last resort, submit amendments to both the Government Code and Coastal Act, as set forth ahead, where it determines that strong lobbying by cities, counties and homeowners associations will not defeat such legislation.¹²¹

A recent Stanford Environmental Law Journal article, authored by Joel Jacobs, Deputy Attorney-General in San Diego, who supervises enforcement of the Coastal Act, similarly calls for an amendment of the Coastal Act when a local government has declined to implement the recommendations of the CCC’s periodic review.¹²²

A. Proposed Commission Quasi-Legislative Regulation

Delete Current Rule: 14 CCR § 13330.

Title 14 Natural Resources, Division 5.5 California Coastal Commission, Chapter 7, Coastal Development-Permits, Subchapter 1.5 Development and Coastal Development Permits Issued and Reviewed by Local Governments and the Commission Pursuant to Certified Land Use Plans, 14 CCR §13330 Scope; 14 CA ADC § 13330.

The scope of this section provides: “The procedures of this subchapter shall apply to appeals to the California Coastal Commission where the coastal development permit authority has been delegated to a local government prior to certification of its local coastal program pursuant to Public Resources Code Sections 30520, 30600.5 and 30624. The procedures shall not apply to coastal developments specified in PRC Sections 30519(b) and 30601 or with respect to any development proposed by any state agency where, pursuant to PRC Section 30600.5(b), direct application must be made to the commission,” and substitute a new 14 CCR § 13330. City and County Local Programs and Plans:

(a) It is the purpose of this regulation to authorize city and county adoption and administration of zoning laws, subdivision regulations, environmental, nuisance and health and safety ordinances, general, area and specific plans (including the mandatory local coastal element of the general plan), and quasi-legislative rules and regulations (“local programs”), so long as such local programs and plans are first submitted to the Commission for certification for their compatibility and consistency in every detail with the goals and policies of the Coastal Act as established by (1) the Coastal Act; (2) Commission quasi-legislative regulations and staff reports and official letters; and (3) judicial and administrative decisions regarding coastal development permits and development, as defined by the Coastal Act.

(b) It shall be a mandatory requirement that a city or county prior to exercising any legislative, administrative, or ministerial function set forth in subparagraph (a) above, with respect to coastal area land uses, coastal development permits and development, as defined by the Coastal Act, shall prepare a local coastal program and plan, certified by the Commission, and that such local coastal program and plan shall be fully compatible and consistent with the goals and policies of the Coastal Act. The Commission declares that, in enacting this regulation, it is its intention to provide that, until a city or county prepares such local coastal, plan and program, and obtains Commission certification thereof, such city or county shall not exercise any ministerial, administrative, or legislative functions, including, but not limited to, enactment of ordinances; issuance of conditional use and building permits or certificates of occupancy; coastal development permits; enactment of quasi-legislative or administrative regulations; and enactment of zoning, health, environmental or nuisance ordinances within the jurisdictional boundaries of their coastal zone; and

(c) Certification by the Commission shall assure that once such local programs and plans are determined to be compatible and consistent in every detail with the goals and policies of the Coastal Act as established by the Commission pursuant to the Coastal Act and quasi-legislative regulations and administrative decisions enacted by the Commission over coastal development permits and development, as defined in this Act, cities and counties shall have full power and authority to act within the Coastal Zone pursuant to the provisions of §30005.5. “Local governmental powers; construction” and to assure that the Commission shall not require any local government, to exercise any power it does not already have under the Constitution and laws of this state or that is not specifically delegated pursuant to Section 30519.

Proposed California Government Code Amendment

§ 65800. Purpose (the bolded words constituting the new amendment)

It is the purpose of this chapter to provide for the adoption and administration of zoning laws, subdivision regulations, environmental, nuisance, and health and safety ordinances, rules, and regulations by counties and cities ) (“local programs”), as well as to implement such general plan as may be in effect in any such county or city so long as such local programs are compatible and consistent in every detail with the goals and policies of the Coastal Act as established by the California Coastal Commission through its quasi-legislative regulations and administrative decisions over coastal-development permits and development, as defined in the Coastal Act. It shall be a mandatory requirement that a city or county, prior to exercising any legislative, administrative or ministerial function with respect to coastal area land uses and development, shall prepare a local coastal program and plan, as defined in the Coastal Act and certified by the Commission, that such local coastal program and plan are fully compatible and consistent with the goals and policies of the Coastal Act. The Legislature declares that in enacting this section it is its intention to provide that until a city or county prepares such local coastal program and plan and receives Commission certification thereof, such city or county shall not exercise any ministerial, administrative, or legislative functions, including, but not limited to, enactment of ordinances; issuance of conditional use and building permits or certificates of occupancy; coastal development permits; enactment of quasi-legislative or administrative regulations; and enactment of zoning, health, environmental, or nuisance ordinances within the jurisdictional boundaries of the coastal zone.

Proposed Coastal Act Amendment

Pub. Resources Code, § 30001, Legislative findings and declarations; ecological balance

(e) It is the purpose of this chapter to provide for the adoption and administration of zoning laws, subdivision regulations, environmental, nuisance, health and safety ordinances, general, area, neighborhood, and specific plans (including the mandatory local coastal element of the general plan), quasi-legislative rules and regulations by counties and cities) (”local programs”), implementing the local coastal element of the general plan so long as such local programs and plans comply with subparagraph (g) below.

(f) Development, as defined in this Chapter, shall include, but not be limited to, city and county ordinances, regulations, and issuance of conditional use permits, building permits, certificates of occupancy, planned unit developments, and variances, and such development be compatible and consistent in every detail with the goals and policies of the Coastal Act.

(g) Every city or county, prior to exercising any legislative, administrative, or ministerial function with respect to coastal area land uses and development, as listed in subparagraph (f) above, shall prepare a local coastal program and plan as defined in this Act, certified by the Commission that such local coastal program and plan is fully compatible and consistent with the goals and policies of the Coastal Act. The Legislature declares that, in enacting this section, it is its intention to assure that, until a city or county prepares such local coastal plan and program and obtains Commission certification thereof, such city or county shall not exercise any ministerial, administrative, or legislative functions within the coastal area, including, but not limited to, enactment of general, specific, area, neighborhood plan or general plan elements; any interim or permanent ordinances or moratoria embracing zoning, subdivision regulations, environmental, nuisance, health, safety and housing ordinances, and quasi-legislative rules and regulation,s as well as to implement such general, specific, area, or neighborhood plans as may be in effect in any such county or city.

(h) Certification by the Commission shall ensure that once such local programs and plans are determined to be compatible and consistent in every detail with the goals and policies of the Coastal Act as established by the Commission through this legislation, quasi-legislative regulations, and administrative decisions enacted by the Commission over coastal development permits and development, as defined in this Act, cities and counties shall have full power and authority to act within the Coastal Zone pursuant to the provisions of § 30005.5, assuring that local government may exercise any power it has under the Constitution and laws of this state or as specifically delegated to cities and counties pursuant to § 30519 of this Act.

Endnotes

1. California Coastal Zone Management Act, Cal. Pub. Res. Code § 30000 et seq. (1976) [hereinafter Coastal Act].

2. The California Public Resources Code § 30103(a) defines California’s coastal zone as the land and water along the entire coast of California, extending seaward to the state’s outer limit of jurisdiction, including all offshore islands, and extending inland generally 1,000 yards from the mean high tide line of the sea. In significant coastal estuarine, habitat, and recreational areas, it extends inland to the first major ridgeline paralleling the sea or five miles from the mean high-tide line of the sea, whichever is less, and in developed urban areas the zone generally extends inland less than 1,000 yards.

3. Id. § 30210 (emphasis added).

4. Id. § 30211. Development is broadly defined by California Public Resources Code § 30106, to include construction of buildings, divisions of land, and activities that change the intensity [or density] of use of land or public access to coastal water. The section requires a coastal development permit (CDP) from the local government appealable to the Coastal Commission, or directly to the CCC if no LCP has been certified by the CCC, before enactment of zoning ordinances banning STVRs in the coastal zone are authorized. Surfrider Found. v. Martins Beach 1, LLC, 14 Cal. App. 5th 238, 252, review denied (Oct. 25, 2017), cert. denied, 139 S. Ct. 54 (2018). As to the procedure for obtaining a CDP, see Holtz v. City of Hermosa Beach, BS163221 Cal. Super. (2016):

Local Government Issuance of a CDP. The Coastal Act requires, with narrow exceptions, a CDP for any development in the coastal zone in addition to any other permit required. Pub. Res. Code § 30600. Authority for issuing CDPs is initially vested in the Coastal Commission. A local government may obtain authority to issue CDPs several different ways: (1) Authority to issue CDPs automatically passes from the Coastal Commission once the local government’s LCP is certified, Pub. Res Code §30519(a), and an applicant must obtain a CDP from the Coastal Commission if the local government’s LCP has not been certified. Cal. Pub. Res. Code §30600(c).

See also Angie Crouch, Man Sues Hermosa Beach over Short-Term Rental Ban, NBC4 News (July 12, 2016), https://www.nbclosangeles.com/news/man-sues-hermosa-beach-over-short-term-rental-ban/154872.

5. Cal. Pub. Res. Code § 30213.

6. California Coastal legislation was established by voter initiative in 1972 (Proposition 20) to implement the federal Coastal Management Act of 1972, 16 U.S.C. §§ 1451–1464 (1972). The legislature later made Proposition 20 permanent through adoption of the California Coastal Act of 1976. Cal. Pub. Res. Code § 30200 et seq. In partnership with coastal cities and counties, the Coastal Commission plans and regulates the use of land and water in the coastal zone.

7. The California Public Resources Code § 30214(b) states: “It is the intent of the Legislature that the public access policies of this article be carried out in a reasonable manner that considers the equities and that balances the rights of the individual property owner with the public’s constitutional right of access pursuant to Section 4 of Article X of the California Constitution.”

8. Yost v. Thomas, 36 Cal. 3d 561, 565 (1984).

9. Pacific Palisades Bowl v. City of Los Angeles, 55 Cal. 4th 783, 793–94 (2012).

10. Id. at 793–94 (quoting Cal. Pub. Resources Code §§ 30001, 30009; Yost, 36 Ca1. 3d at 565).

11. James Dobbins, Making a Living on Airbnb, N.Y. Times, Apr. 9, 2017, at B8 (noting supplemental income afforded to homeowners by furnishing lower-cost STVR visitor access to coastal beaches and recreation areas through Airbnb Internet listings has been recognized as a major incentive to implement the Coastal Act’s beach access policies).

12. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 338 n.33 (2002) (upholding an IDO of thirty-one months’ duration as not creating a regulatory taking, as opposed to immediate enactment of a permanent ban which would create a per se taking pursuant to Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992); Elizabeth Garvin & Martin L. Leitner, Drafting Interim Development Ordinances: Creating Time to Plan, 48 Land Use Law & Zoning Dig. 3 (June 1996) (“With the planning so protected, there is no need for hasty adoption of permanent controls in order to avoid the establishment of nonconforming uses, or to respond in an ad hoc fashion to specific problems. Instead, the planning and implementation process may be permitted to run its full and natural course with widespread citizen input and involvement, public debate, and full consideration of all issues and points of view”); Robert H. Freilich, Interim Development Controls: Essential Tools for Implementing Flexible Planning and Zoning, 49 J. Urb. Law. 65 (1971); see also Conway v. City of Imperial Beach, 52 Cal. App. 4th 78, 90 (1997) (“We hold that an interim ordinance which does not authorize “a use other than that designated in the LCP as a permitted use. The ordinance need not be certified by the Coastal Commission prior to implementation and enforcement. The trial court here correctly concluded that approval of the Coastal Commission was not required prior to implementation and enforcement of Proposition P. In approving and affirming that conclusion, we thus “avoid an interpretation that would lead to absurd consequences.” (quoting Yost, 36 Cal. 3d at 573 n.9; People v. Coronado, 12 Cal. 4th 145, 151 (1985)).

13. Utilizing an Interim Development Ordinance (IDO) would be a far better device for a city or county than enacting a permanent moratorium or ban. A reasonable time-limited IDO insulates the legislative action from constituting a regulatory taking.

14. See Yost, 36 Cal. 3d at 572; compare Cal. Pub. Res. Code § 30401 (“Local governments are extensively involved in the formulation and implementation of local coastal plans”), with Pub. Res. Code § 30004 (a) (“The Coastal Act sets ‘minimum standards and policies’ for localities to follow in developing land use plans; and then concluding with “The Act thus contemplates . . . planning subject to review for conformity to statewide standards.”). This terminology causes massive confusion in court decisions and Attorney-General Opinions.

15. In this article we use “LCP” interchangeably for the “local coastal program” and the “local coastal plan.” The context of the reference will distinguish the specific meaning.

16. Coastal Commission, Local Coastal Permit Update Guide (Dec. 10, 2010) (emphasis added). Note the confusion in Reddell v. Cal. Coastal Comm’n, 180 Cal. App. 4th 956, 965 (2009): “[W]e exercise our independent judgment in reviewing the Commission’s interpretation of the Coastal Act and LCP policies. . . .” What do you think the court was referring to when it used the term LCP (“the Local Coastal Program” or the “Local Coastal Element of the General Plan”)? See also Cal. Gov’t Code § 68400 (same).

17. See Letter from Steve Hudson, Deputy Director, Cal. Coastal Comm’n, to Hermosa Beach City Council (May 24, 2016) (on file with author); Letter from Jordan Sanchez, Enforcement Officer, Cal. Coastal Comm’n, to Kim Chafin, Senior Planner, City of Hermosa Beach (May 9, 2016) (on file with author); Sandy Mazza, Hermosa Beach Approves Short Term Rentals in Commercial Areas, Beach Rptr. (Apr. 11, 2017).

18. See Johnston v. City of Hermosa Beach, No. B278424 (Cal. Ct. App. Jan. 17, 2018) (affirming the Superior Court’s denial of the STVR plaintiff owners’ motion for a preliminary injunction). Author was counsel for the plaintiffs during the superior and appellate court proceedings in the case.

19. See Kracke v. City of Santa Barbara, No.16-490376 (Cal. Super. Ct. June 26, 2017) (order denying city demurrer to a complaint in an action seeking an injunction restraining city from enforcing its ordinance banning all STVRs in city coastal area where city had failed to approve a CDP, appealable to the CCC, because the ordinance was a “development” as defined by the Coastal Act. The correctness of the Kracke decision was confirmed in Surfrider Found. v. Martins Beach 1, LLC ,14 Cal. App. 5th 238, 252 (2017), review denied (Oct. 25, 2017), cert. denied, 139 S. Ct. 54 (2018) (“The Coastal Act has not been read as narrowly as appellants propose. Instead, the courts have given the term “development” an “expansive interpretation . . . consistent with the mandate that the Coastal Act is to be ‘liberally construed to accomplish its purposes and objectives.’” (citations omitted)). Thus, directly contrary to appellants’ assertions, “the Coastal Act’s definition of ‘development’ goes beyond ‘what is commonly regarded as a development of real property’ and is not restricted to activities that physically alter the land or water.” Surfrider Found., 14 Cal. App. 5th at 252 (noting that “the public access and recreational policies of the Coastal Act should be broadly construed to encompass all impediments to access, whether direct or indirect, physical or nonphysical”) Moreover, the court further explained: “Section 30106, by using the word ‘change,’ signals that a project that would decrease intensity of use, such as by limiting public access to the coastline or reducing the number of lots available for residential purposes, is also a development. . . . Accordingly, the nature of the conduct at issue does not undermine the conclusion that it is development under the plain language of section 30106.” Id. (emphasis added).

20. The Court of Appeals denied granting judicial notice to the CCC’s staff reports because “the Coastal Commission did not seek leave to intervene in the trial court, nor did it seek to submit an amicus brief in this court.” Johnston v. City of Hermosa Beach, No. B278424, 2018 WL 458920, at *5 (Cal. Ct. App., Jan. 17, 2018), modified (Feb. 13, 2018), review denied (Apr. 11, 2018).

21. Astonishingly, of the seventy-six cities and counties with land in the coastal zone, only seventy-five percent have submitted a local coastal program and plan for certification. Joel Jacobs, A Bug in the Programs: The Need to Create Greater Incentives for Local Coastal Program Updates 36 Stan. Env’t L.J. 3 (2016); see also Cal. Coastal Comm’n, Summary of LCP Program Activity in FY15–16 (2016) (“Those cities and counties that do not have a certified LCP may likely have no intention of creating one, either out of opposition to the Act and the Coastal Commission on political and policy grounds or because of a (perhaps misguided) preference for the pre-1984 certification system under which the Coastal Commission, rather than local governments, issue coastal development permits. The explanation is almost certainly not that the cities and counties do not have the resources or ability to submit a plan. The Act allows cities and counties to request that the Coastal Commission create an LCP for them and in fact gives the Commission an optional mandate to create and adopt an LCP for cities and counties which did not adopt one by 1983. Pub. Res. Code §§ 30500, 30517.5; see also, § 30600(c). “A local government may issue coastal development permits before certification of its local coastal plan if its land use plan for the area has been certified by the Coastal Commission and it has developed permitting standards and procedures [and] these [CDP] decisions may be appealed to the Coastal Commission on the grounds that they conflict with the policies of the Act or the certified land use plan. Id. §§ 30600(b), 30600(c), 30600.5. (emphasis added); https://documents.coastal.ca.gov/assets/la/FY15_16_LCPStatusSummaryChart.pdf.

22. Cal. Pub. Res. Code § 30512.2 (a) (emphasis added).

23. In rejecting judicial notice of CCC staff reports and correspondence, the Johnston court decreed that “[Plaintiffs] rely primarily on documents—a number of which were Coastal Commission staff reports—[which] this court has declined to judicially notice. Moreover, the Coastal Commission did not seek leave to intervene in the trial court, nor did it seek to submit an amicus brief in this court.” Johnston v. City of Hermosa Beach, Case No. B278424, at *11 (Cal. Ct. App. Jan. 17, 2017). Compare that with the approach the CCC suggested as amicus in Surfrider, 14 Cal. App. 5th at 257, where the Court of Appeals stated: “As amicus the Coastal Commission points out: ‘If the Coastal Act agencies grant [appellants] a permit to close their property to the public, or accept that the denial of a permit would violate the provisions of [Cal. Pub. Res. Code] section 30010 and adjust application of Coastal Act policies accordingly, or find that the public has existing rights of access to the property, those decisions would certainly inform determinations regarding the economic impact on [appellants] of Coastal Act regulation of their property as well as determinations regarding the character of the government action. Accordingly, appellants’ claim that the permit requirement itself effects a taking is not ripe.”

24. See Letter from Attorney General to Court of Appeal, Second Appellate District (Feb. 12, 2018) (relating to Johnston case: “The Coastal Act requires local governments to develop local coastal programs, comprised of a land use plan and a set of implementing ordinances designed to promote the Act’s objectives of protecting the coastline and its resources and of maximizing public access. (Cal. Pub. Resources Code §§ 30001.5, 30500–30526.) The Commission reviews these plans for consistency with the Coastal Act’s policies. (Pub. Resources Code, §§ 30512–30513.) Once the Commission certifies a local government’s program, and all implementing actions become effective, the Commission delegates authority over coastal development permits to the local government. (Pub. Resources Code, §§ 30519, subd. (a), 30600.5, subds. (a), (b), (c).) The Attorney General letter raised other points: “A local coastal program and the development permits [CDPs] issued by local agencies pursuant to the Coastal Act are not solely a matter of local law but embody state policy. (Pacific Palisades Bowl v. City of Los Angeles, supra, 55 Cal. 4th at 794.) A fundamental purpose of the Coastal Act is to ensure that state policies prevail over the concerns of local government. (Ibid.) As this Court recognized in City of Malibu v. California Coastal Commission (2004) 121 Cal.App.4th 969, 996, “only an agency transcending local boundaries can devise, adopt and put into operation solutions for problems besetting the region as a whole. Thus, the Commission’s review and approval of ordinances regulating development in the coastal zone is a matter of statewide concern and its authority must be liberally construed.” (Pub. Res. Code § 30009.) However, the Johnston decision, if published, would encourage local governments without certified local coastal programs to ignore the Coastal Act requirements. Such local governments could pass any ordinance prohibiting priority coastal uses despite express Coastal Act requirements elevating certain land uses, including visitor-serving recreational facilities, over others. (Pub. Resources Code, § 30222.) Simply put, no city or county without a certified local coastal program would ever obtain a fully certified program but would instead adopt ordinances regulating land uses without complying with the Coastal Act.”

25. In Johnston, the Attorney General appeared only as an amicus curiae after the Court of Appeals’ unpublished opinion was issued. In a letter opinion dated February 12, 2018, the Attorney General opposed motions of the city, county, League of California Cities, and the California Association of Counties requesting the Court of Appeals and subsequently the Supreme Court to publish the opinion. The Attorney General stated: “The Commission was not a party to the case and had no input,” and instead of requesting that review be granted and the opinion reversed, the Attorney General requested both courts not to publish because the decision of the Court of Appeals had approved unconstitutional municipal legislation in violation of state preemption arising from the Coastal Act.

It is an open question as to why the Attorney General, acting on behalf of the CCC, did not intervene from the very beginning of the Johnston case to raise these constitutional arguments in both the Superior Court and the Court of Appeals, as it forcefully did by intervening in Beach & Bluff Conservancy v. City of Solana Beach, 28 Cal. App. 5th 244 (2018), a year later. The CCC also appeared only as an amicus curiae in Surfrider Foundation.

26. See supra note 8.

27. See supra note 15. Indeed, in the Johnston case, the League of California Cities, and the California Association of Counties filed amicus curiae briefs requesting the Supreme Court to publish the case so that cities and counties throughout the state could legally ban STVRs in coastal zones without obtaining a certified LCP authorizing such action.

28. Josephine M. Patrick, Unpublished California Opinions: Citable by Judicial Notice?, App. Prac. (June 22, 2018): “California practitioners know that they cannot cite or rely upon unpublished . . . California opinions in California courts, except when relevant to law of the case, res judicata, etc.  (Rules of Court, 8.1115(a).)  . . . There has been an underground debate as to whether the judicial notice statute, Evid. Code § 452(d)(1), trump[s] Rule 8.1115. (See Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal. App. 4th 212, 218 n.14; Rafi Moghadam, Judge Nullification: A Perception of Unpublished Opinions (2011) 62 Hastings L.J. 1397. Courts may take judicial notice of “the records of . . . any court of this state” (Evid. Code § 452, subd. (d)(1))—a category into which unpublished court opinions certainly fall (see Gilbert, supra, 87 Cal. App. 4th at p. 218, fn. 14). To the extent that the rule of court and the statute are inconsistent, the statute must control. (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 532.)

29. Talia Edelman, Note, Cities Can Stem the Tide of Short-Term Coastal Rental Homes, scocablog, (a joint project of Berkeley Law’s California Constitution Center and the Hastings Law Journal) (Apr. 16, 2019) (“This article analyzes the conflict between the Coastal Commission’s mandate under the Coastal Act and a city’s constitutional power to enact local land use regulations, and concludes that cities likely do not need commission approval to restrict short-term residential rentals because such ordinances do not contravene the Coastal Act.”) (emphasis added). It should be noted that the note, curiously, does not reference Surfrider, the Attorney General’s opinion of 2018, or even Johnston.

30. See Jennifer Sokolowsky, Del Mar Repeals New Short Term Rental Law, Avalara MyLodgeTaxBlog (Oct. 24, 2018); City of Del Mar, Cal., Planning and Community Development, Short Term Rentals, https://www.delmar.ca.us/563/Short-Term-Rentals (last visited Oct. 4, 2020) (“On Monday, November 6, 2017, the City Council adopted an Ordinance to establish new regulations for short term rentals (rentals less than 30 consecutive days). . . . On June 7, 2018 the California Coastal Commission conditionally certified the City’s Short Term Rental Ordinance/Local Coastal Program Amendment with modifications. (The conditional approval expired on December 13, 2019). On July 16, 2018, the City Council voted 3-2 to seek a writ of mandate asking the Court to clarify the Coastal Commission’s authority over local land use and zoning matters. The rationale stated was that the issue of control over land use in Del Mar’s residential neighborhoods needs to be resolved as soon as possible in order to achieve what is best for Del Mar.”).

31. See Faith E. Pinho, Laguna Beach Moves to Ban New Short-Term Rentals in Residential Zones, L.A. Times (Apr. 26, 2019).

32. The San Diego City Council has repealed the new short-term rental law passed in August banning STVRs in the entire city. A referendum seeking to repeal the law received enough signatures to qualify for a ballot, and the Council had the choice to either rescind the law or allow the question to go to a vote. The council voted 8-1 to rescind the new law. The vote takes San Diego back to where it was before the law was passed in August, with no enforced regulation on short-term rentals after years of debate.”

33. See, e.g., Hugo Martin, Airbnb Sues Anaheim Over Law That Makes the Rental Site Liable for Hosts Who Violate City Law, L.A. Times (July 28, 2016), http://www.latimes.com/business/la-fi-airbnb-anaheim-20160728-snap-story.html; Katie Benner, Airbnb Sues over New Law Regulating New York Rentals, N.Y. Times (Oct. 21, 2016), http://www.nytimes.com/2016/10/22/technology/new-york-passes-law-airbnb.html; Ivan Penn, Airbnb Sues Santa Monica over Short-Term Rental Ban, L.A. Times (Sept. 2, 2016), http://www.latimes.com/business/la-fi-airbnb-lawsuit-santa-monica-20160903-snap-story.html; Airbnb Awaits Berlin Ruling on Legality of Home-Sharing, Fortune (June 7, 2016), http://fortune.com/2016/06/07/airbnb-berlin-ruling-home-sharing-legal.

34. Will Van Factor, How Do I Stop Neighbors from Using Their House as an Airbnb or Other Type of Vacation Rental? Nolo (2019) (“Question: My neighbors are renting out units on Airbnb driving me crazy. Response: “Although a lawsuit involves time, money, and risk, it’s another option to consider. If the noise and partying is excessive, there may be a basis to claim a ‘private nuisance.’ You can ask the court to award money damages as well as an injunction ordering your neighbors to immediately stop renting their property as a short term vacation rental.”).

35. David L. Callies, Robert H. Freilich & Shelley Ross Saxer, Land Use: Cases and Materials 642 (7th ed. 2017) (“Increasing [affordable] housing supply requires cities to upzone for higher density. Yet today, one can expect neighbors to object to any such suggestion. These neighbors are well described by several pejorative acronyms. First there is the well-known NIMBY (Not in My Backyard); second, CAVE (Citizens Against Virtually Anything); and third, BANANA (Build Absolutely Nothing Anywhere Near Anything).”).

36. . Office of the Cal. Attorney General, No. 87-405, at 3 (Sept. 10, 1987), https://oag.ca.gov/system/files/opinions/pdfs/87-405.pdf.

37. 70 Ops. Cal. Atty. Gen. 220 (1987) (citing Cal. Pub. Res. Code §§ 30500, 30512, 30513, 30514); see also La Fe, Inc. v. Los Angeles County, 73 Cal. App. 4th 231, 242 (1999).

38. See Yost v. Thomas, 36 Cal. 3d 561, 565 (1984) (noting that the LCP must implement, not contradict, the goals, policies and implementation strategies of the Coastal Act before CCC certification of the LCP).

39. This parallels California Government Code § 65860 which requires a city’s zoning ordinance to be consistent with the general plan. When a zoning ordinance becomes inconsistent due to a general plan amendment, the city must enact a consistent zoning ordinance within a “reasonable time.” Cal. Gov’t Code § 65860(c). City of Morgan Hill v. Bushey, 5 Cal. 5th 1068 (2018).

40. Dana Point, 217 Cal. App. 4th at 204 (“[I]f . . . the city’s action in declaring a nuisance, or in prescribing the alleged abatement actions, is a pretext for avoiding its obligations under the local coastal program, [it is void]”; id. at 176 (“More specifically, we hold that before a municipality may obtain a writ of mandate restraining the Commission from exercising jurisdiction over development that the municipality has authorized pursuant to section 30005, subdivision (b), the municipality must demonstrate that it has exercised its nuisance abatement powers in good faith, in that the municipality has not utilized these powers as a pretext for avoiding its obligations under its own local coastal program.”).

41. La Fe, Inc. v. Los Angeles County, 73 Cal. App. 4th 231, 239–40 (1999) (citations omitted).

42. Johnston v. City of Hermosa Beach, No. B278424, 2018 WL 458920, at *4 (Cal. Ct. App. Jan. 17, 2018), modified (Feb. 13, 2018), review denied (Apr. 11, 2018). To the contrary, the record clearly establishes that plaintiffs in their amended complaint specifically alleged in paragraph 44 in its fifth cause of action for injunctive relief: “The California Coastal Act specifically prohibits any City from adopting a nuisance ordinance within its coastal zone, without first preparing and having the Coastal Commission certify an LCP, or obtain a Coastal Commission certified CDP.” (emphasis added).

43. Napa Valley Educators’ Ass’n v. Napa Valley Unified Sch. Dist., 194 Cal. App. 3d 243, 251 (1987) (“Opinions of the Attorney General, while not binding, are entitled to great weight. . . . In the absence of controlling authority, these opinions are persuasive ‘since the Legislature is presumed to be cognizant of that construction of the statute.’”) (citations omitted).

44. See Douda v. Cal. Coastal Comm’n, 159 Cal. App. 4th 1181 (2008) (In reviewing an application for a CDP, when no local coastal program has been certified by the CCC, the CCC should deny the permit issued by the city when necessary to achieve the legislature’s “basic goals” as stated in the Coastal Act.); see also Cal. Pub. Res. Code § 30001 (“The Legislature hereby finds and declares: (d) That existing future developments that are carefully planned and developed consistent with the policies of this division, are essential to the economic and social well-being of the people of this state. . . .” (emphasis added)); see also City of Malibu v. Cal. Coastal Comm’n, 206 Cal. App. 4th 549 (2012) (CCC exceeding its statutory authority when it approved upon appeal a CDP issued by the city, which contradicted the terms of the local coastal program and local coastal plan the CCC had previously certified); Banning Ranch Conservancy v. City of Newport Beach, 2 Cal. 5th 918, 925 (2017) (“In addition to having a general plan, every local government in the coastal zone must submit a local coastal program for Coastal Commission approval. The program consists of a coastal land use plan (CLUP) and implementing regulations. The CLUP may be completed first, with regulations developed later. The City had yet to enact its regulatory component, or to adopt procedures for issuing coastal development permits, and thus did not have a certified local coastal program. (See § 30600, subd. (b)(1).) Accordingly, the Coastal Commission exercised permitting authority over development on Banning Ranch. (See § 30600, subd. (c).” (emphasis added; some citations omitted)).

45. Yost v. Thomas, 36 Cal. 3d 561, 572 (1984) (citing Cal. Gov. Code § 65860).

46. The California Government Code § 65860(c) requires a city’s zoning ordinance to be consistent with the city’s general plan. When a zoning ordinance becomes inconsistent due to a general plan amendment, the city must enact a consistent zoning ordinance within a “reasonable time.” City of Morgan Hill v. Bushey, 5 Cal. 5th 1068 (2018).

47. California Public Resources Code § 30512.2 provides:

The following provisions shall apply to the commission’s decision to certify or refuse certification of a land use plan pursuant to Section 30512:

(a) The commission’s review of a land use plan shall be limited to its administrative determination that the land use plan submitted by the local government does, or does not, conform with the requirements of Chapter 3 (commencing with Section 30200).

(b) The commission shall require conformance with the policies and requirements of Chapter 3 (commencing with Section 30200) only to the extent necessary to achieve the basic state goals specified in Section 30001.5 (emphasis added).

48. The California Supreme Court noted: “The wording of these and other sections does not suggest preemption of local planning by the state, rather they point to local discretion and autonomy in planning subject to review for conformity to statewide standards.” Yost, 36 Cal. 3d at 572 (1984). Strengthening the proposition that planning is the constitution for all local government permitting and regulation, the Act specifically grants the CCC an optional mandate to create and adopt an LCP for cities and counties which did not adopt one by 1983. Pub. Res. Code §§ 30500, 30517.5 (emphasis added). See Charles M. Haar, In Accordance with a Comprehensive Plan, 68 Harv. L. Rev. 1154 (1955); Edward J. Sullivan & Jennifer Bragar, Recent Developments in Comprehensive Planning, 46 Urb. Law. 685 (2014): (“In California the General Plan is the basis for a consistency determination.”).

49. See supra note 42.

50. See Douda v. Cal. Coastal Comm’n, 159 Cal. App. 4th 1181, 1199 (2008) (“[A]n issuing agency’s (CCC) decisions must be tempered by restraint and recognition of the minimum necessary regulation, and a local government can take issuing duties away from the Commission by putting together a local coastal program and having it certified.”); City of Malibu v. Cal. Coastal Comm’n, 206 Cal. App. 4th 549 (2012) (CCC exceeding its statutory authority when it approved upon appeal a CDP that contradicted the terms of the local coastal program and local coastal plan the CCC had previously certified).

51. See Jacobs, supra note 21.

52. See Banning Ranch Conservancy v. City of Newport Beach, No. 30-2012-00593557, 2017 WL 1174436 (Cal. Mar. 30, 2017) (“In addition to having a general plan, every local government in the coastal zone must submit a local coastal program for Coastal Commission approval. The program consists of a coastal land use plan (CLUP) and implementing regulations. The CLUP may be completed first, with regulations developed later. . . . The City had yet to enact its regulatory component, or to adopt procedures for issuing coastal development permits, and thus did not have a certified local coastal program. . . . Accordingly, the Coastal Commission exercised permitting authority over development on Banning Ranch.” (citations omitted; emphasis added)).

53. Cal. Pub. Res. Code § 30600. The coastal development permit requirement is “in addition to obtaining any other permit required by law from any local government or from any state, regional, or local agency.” Surfrider Found. v. Martins Beach 1, LLC,14 Cal. App. 5th 238, 252 (2017), review denied (Oct. 25, 2017), cert. denied, 139 S. Ct. 54 (2018).

54. Cal. Pub. Res. Code § 30600(c).

55. Id. § 30604(a).

56. Id. §§ 30519(a), 30600(d).

57. Id. §§ 30600.5(f); 30604(b); 30512.2(b).

58. § 30512.2(b).

59. Cal. Pub. Res. Code § 30500(c).

60. Id. § 30523.

61. Cal. Pub. Res. Code § 30604(d).

62. Astute readers of the text of the Coastal Act should note that after an LCP has been certified, actions taken by the local government regarding CDPs for developments within 300 ft. inland of a beach or which are not the primary permitted use under the approved zoning scheme, are appealable to the Coastal Commission on the grounds that the local government’s permitting actions do not conform to either the policies of the certified LCP or the public access policies of the Coastal Act § 30603. Surfrider Found. v. Martins Beach 1, LLC ,14 Cal. App. 5th 238, 252 (2017), cert. denied, 139 S. Ct. 54 (2018); see also Banning Ranch Conservancy v. City of Newport Beach, No. 30-2012-00593557) 2017 WL 1174436 (Cal. Mar. 30, 2017):

In addition to having a general plan, every local government in the coastal zone must submit a local coastal program for Coastal Commission approval. The program consists of a coastal land use plan (CLUP) and implementing regulations. The CLUP may be completed first, with regulations developed later. . . . The City had yet to enact its regulatory component, or to adopt procedures for issuing coastal development permits, and thus did not have a certified local coastal program. Accordingly, the Coastal Commission exercised permitting authority over development on Banning Ranch. (emphasis added) (citations omitted).

This Supreme Court decision was issued concurrently with Banning Ranch Conservancy v. City of Newport Beach, 2 Cal. 5th 918 (Mar. 30, 2017) (CEQA aspects of the case).

63. Yost v. Thomas, 36 Cal. 3d 561, 573 (1984).

64. See Bishop v. City of Santa Jose, 1 Cal. 3d 56, 62–63 (1969) (“Whether a measure involves a municipal affair, or a subject of statewide concern, is a judicial, not a legislative question and no exact definition of the term “municipal affairs” can be formulated. Nevertheless, we are convinced that a court would be persuaded by the legislative finding quoted above that the subject of requiring local ordinances and actions in the coastal zone to conform to state coastal planning and management is a matter of statewide concern and not a municipal affair.) (emphasis added); see also Dana Point, 217 Cal. App. 4th at 435 (citing Pacific Palisade Bowl Mobile Estates, LLC v. City of Los Angeles, 55 Cal. 4th 783, 793 (2012); Surfrider Found. v. Martins Beach, 14 Cal. App. 5th 238, 252 (2017) (“The Coastal Act has not been read as narrowly as appellants propose. Instead, the courts have given the term “development” an “expansive interpretation . . . consistent with the mandate that the Coastal Act is to be ‘liberally construed to accomplish its purposes and objectives.’”); see also Douda v. Cal. Coastal Comm’n, 159 Cal. App. 4th 1181, 1197 (2008); Yost, 36 Cal. 3d at 572.

65. In accordance with Bishop, section 30004(b) of the Coastal Act provides in part: “The Legislature further finds and declares: ‘To ensure conformity with the provisions of this Act, and to provide maximum state involvement in federal activities allowable under federal law or regulations or the United States Constitution which affect California’s coastal resources, to protect regional, state, and national interests . . . it is necessary to provide for continued state coastal planning and management through a state coastal commission.’”

66. “[A] local ordinance is not impliedly preempted by conflict with state law unless it ‘mandate[s] what state law expressly forbids, [or] forbid[s] what state law expressly mandates.” Browne v. County of Tehama, 213 Cal. App. 4th 704, 721 (2013); see also City of Riverside v. Inland Empire Patients Health & Wellness Ctr., 56 Cal. 4th 729, 742 (2013) (“A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws”); Sherwin-Williams Co. v. City of Los Angeles, 4 Cal. 4th 893, 897 (1993) (“Under article XI, section 7 of the California Constitution, “[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws,” but, “[i]f otherwise valid local legislation conflicts with state law, it is preempted by such law and is void.”  People ex rel. Deukmejian v. County of Mendocino, 36 Cal. 3d 476, 484(1984); Lancaster v. Municipal Court, 6 Cal. 3d 805, 807 (1972). 87 Op. Att’y Gen. 405 states, on the Coastal Act:

It has been suggested that section 30005 authorizes a city or county to prohibit a use in the coastal zone which is authorized by an LCP or LUP certified by the Commission without approval of the Commission because it would be an additional regulation imposing further restrictions and limitations on land use in the coastal zone, and thus would be a local power not limited by the Act. We reject the suggestion because section 30005 expressly affects only those local powers which are ‘not in conflict with the act.’ A local prohibition of a use authorized by a certified LCP or LUP might well be in conflict with the Act. An example would be local action prohibiting use of certain beach frontage as a marina when the certified LCP or LUP authorized use of the same property as a marina. The Commission might well find that such a prohibition would be in conflict with section 30220 through 30224 of the Act. (emphasis added).

67. Yost, 36 Cal. 3d at 565.

68. Charles A. Pratt Constr. Co. v. Cal. Coastal Comm’n, 162 Cal. App. 4th 10068, 1075 (2008).

69. Yost, 36 Cal. 3d at 572.

70. City of Chula Vista v. Superior Court, 133 Cal. App. 3d 476, 489 (1982).

71. Id.

72. Keen v. City of Manhattan Beach, Case No. 19STCP02984 (June 20, 2020), https://rulings.law/ruling/19STCP02984/6/25/2020?searchtext= (granting tentative decision on petition for writ of mandate).

73. See generally Dan Weikel, Getting to the Beach Often Comes down to One Thing for People: Money, L.A. Times (Jan. 25, 2017), http://www.latimes.com/local/lanow/la-me-ln-coastal-access-20170124-story.html; Jon Christensen & Phillip King, Coastal Access in California, UCLA Inst. Envt. & Sustainability (2016), https://www.ioes.ucla.edu/project/coastal-access-california; Jon Christensen & Phillip King, Access For All: A New Generation’s Challenges on the California Coast, UCLA Inst. Envt. & Sustainability (2017), https://www.ioes.ucla.edu/wp-content/uploads/UCLA-Coastal-Access-Policy-Report.pdf.

74. Cf. Robert García & Erica Flores Baltodano, Free the Beach! Public Access, Equal Justice, and the California Coast, 2 Stan J. C.R. & C.L. 143 (2005) (exploring factors that have historically kept minority populations from enjoying coastal access).

75. Christensen & King, supra note 73, at 5–6.

76. Dan Weikel, Proposed Legislation Calls for More Affordable Overnight Accommodations Along the California Coast, L.A. Times (Feb. 1, 2017), http://www.latimes.com/local/lanow/la-me-ln-coastal-accommodations-20170201-story.html.

77. Letter from Steve Kinsey, Cal. Coastal Comm’n Director, to City & County Coastal Plan. Dirs. (Dec. 6, 2016); see also In Re Application No. A-3-SLO-17-0053, Cal. Coastal Comm’n (Clemence-Lucas Vacation Rental Cambria, San Luis Obispo County) (“The distance limits in the LCP are intended to spread out vacation rentals in residential neighborhoods, thereby protecting against oversaturation of rentals and maintaining neighborhood character for long-term residents and the community overall. Approval of the project would result in a concentrated number of vacation rentals in this particular location, inconsistent with the intent and requirements of the LCP, and the Commission finds that a CDP allowing for lesser distances in this case is not appropriate and denies the CDP application.”).

78. Kracke v. City of Santa Barbara, No. 56-2016-00490376-CU-WM-VTA, at *3–4 (Super. Ct. June 26, 2017), available at http://www.strsantabarbara.org/wordpress/wp-content/uploads/2017/07/strsb_injunctionruling_062617.pdf (ruling on demurrer)

79. Id. at *8.

80. Id. at *9.

81. See Cal. Coastal Comm’n, Sample of Commission Actions on Short Term Rentals (2016), https://documents.coastal.ca.gov/assets/la/Sample_of_Commission_Actions_on_Short_Term_Rentals.pdf; see also Conway v. City of Imperial Beach, 52 Cal. App. 4th 78, 88–90 (1997).

82. Dan Carl & Daniel Robinson, Cal. Coastal Comm’n, Pismo Beach LCP Amend. Number PSB-1-10 Part 2 (Vacation Rentals), Th20b (2016), https://documents.coastal.ca.gov/reports/2011/12/Th20b-12-2011.pdf.

83. Id. note 69. The LCP review process also substitutes in coastal areas for California Environmental Quality Act review, and the CCC found that lower visitor availability was a “significant unmitigatable environmental impact within the meaning of CEQA.” (emphasis added).

84. Id. note 69.

85. Dan Carl & Susan Craig, Cal. Coastal Comm’n, Santa Cruz County LCP Amend. No. 1-11 pt. 3 (Vacation Rental Regulations), W6b (2016), https://documents.coastal.ca.gov/reports/2011/7/W6b-7-2011.pdf.

86. See Cal. Coastal Comm’n, Sample of Commission Actions on Short Term Rentals (2016), https://documents.coastal.ca.gov/assets/la/Sample_of_Commission_Actions_on_Short_Term_Rentals.pdf.

87. Surfrider Found. v. Martins Beach 1, LLC, 14 Cal. App. 5th 238, 252 (2017) (“[T]he public access and recreational policies of the Coastal Act should be broadly construed to encompass all impediments to access, whether direct or indirect, physical or nonphysical. What is important for purposes of section 30106 in the present case is that appellants’ conduct indisputably resulted in a significant decrease in access to Martins Beach. Pacific Palisades specifically contemplated that such a change would be within the scope of the Coastal Act [CDP] permitting requirement. . . . [S]ection 30106, by using the word ‘change,’ signals that a project that would decrease intensity of use, such as by limiting public access to the coastline or reducing the number of lots available for residential purposes, is also a development. Accordingly, the nature of the conduct at issue does not undermine the conclusion that it is development under the plain language of section 30106.”) (emphasis added; citation omitted).

88. Hermosa Beach, Cal., Ordinances 16-1365 (2016), http://www.codepublishing.com/CA/HermosaBeach/#!/HermosaBeachOT.html.

89. See Letter from Steve Hudson, Deputy Director, Cal. Coastal Comm’n, to Hermosa Beach City Council (May 24, 2016) (on file with author); Letter from Jordan Sanchez, Enforcement Officer, Cal. Coastal Comm’n, to Kim Chafin, Senior Planner, City of Hermosa Beach (May 9, 2016) (on file with author).

90. Opposition to Request for Preliminary Injunction at *12, Johnston v. City of Hermosa Beach, No. BS163448 (Cal. Super. Ct. 2016). But see City of Malibu v. Cal. Coastal Comm’n, 206 Cal. App. 4th 549 (2012) (CCC exceeding its statutory authority when approving upon appeal a CDP issued by the city, which contradicted the terms of the local coastal program and local coastal plan the CCC had previously certified).

91. Id. at *11–12.

92. Id. at *12.

93. City of Hermosa Beach, Cal., Ordinances 16-1365 (2016).

94. Burson v. Freeman, 504 U.S. 191, 199 (1992).

95. Id.

96. See Pittsburgh Press Co. v. Human Rels. Comm’n, 413 U.S. 376, 388 (1973); Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U.S. 557 (1980); Gerawan Farming, Inc. v. Kawamura, 33 Cal. 4th 1, 22 (2004).

97. 47 U.S.C. § 230(c)(1).

98. Id. § 230(e)(3).

99. Anaheim, Cal., Mun. Code § 4.05.120 (2016).

100. Letter from Kristin Pelletier, Acting City Attorney, City of Anaheim, to Jonathan Blavin and Jim Grant (Aug. 10, 2016) (on file with author); see also Hugo Martin, Anaheim Won’t Fine Short-Term Rental Companies for Hosts’ Violations, L.A. Times (Aug, 22, 2016), http://www.latimes.com/business/la-fi-anaheim-airbnb-0160823-snap-story.html.

101. Only in rare instances, where the website provider, rather than the user, controls the content to such a degree that the user is not actually providing anything, liability may be imposed on the website provider, but these cases are by far the exception. Cf. Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (initially holding that selections from drop-down menus were not truly “created” by third-party users), vacated in part, 666 F.3d 1216, (9th Cir. 2012). A similar situation prevails in 2019 with the indictment of Wikileaks under the Espionage Act for allegedly releasing security secrets as a third party publisher. See Charlie Savage, Assange Indicted Under Espionage Act, Raising First Amendment Issues, N.Y. Times (May 23, 2019).

102. See LT-WR, L.L.C. v. Cal. Coastal Comm’n, 151 Cal. App. 4th 427 (2007). A final determination of the commission recognizing a claim of vested rights shall constitute acknowledgment that the development does not require a coastal development permit under California Public Resources Code § 30600 or § 30601, which provided that no substantial change may be made in the development except in accordance with the permit requirements of the California Coastal Act of 1976.

103. See Davis v. Cal. Coastal Comm’n, 57 Cal. App. 3d 700, 708 (1976) (“A developer who claims to be exempt from the Coastal Zone Conservation Act permit requirements by reason of a vested right to develop the property must claim exemption on that basis. . . . Where the developer fails to seek such a determination but instead elects to apply only for a permit, he cannot later assert the existence of a vested right to development, i.e., the developer waives his right to claim that a vested right exists.) (citations omitted).

104. See Whaler’s Village Club v. Cal. Coastal Comm’n, 173 Cal. App. 3d 240, 252 (1985) (“The term ‘vested’ in the sense of ‘fundamental vested rights’ to determine the scope of judicial review, however, is not synonymous with its use in the ‘vested rights’ doctrine relating to land use and development. To determine the scope of judicial review, the term has been used to denote generally a right ‘already possessed’ or ‘legitimately acquired’ for example, in the area of licensing and permit applicants and recipients.”) (citations omitted).

105. Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) (allowing police power to be used to maintain zones for peaceful residential life); see also Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 380, 395 (1926) (upholding zoning that excluded apartment buildings from one- and two-family homes zones); City of Riverside v. Inland Empire Patients Health & Wellness Ctr., Inc., 56 Cal. 4th 729, 737–38 (2013) (acknowledging broad powers to limit uses in different zones).

106. Cal. Jur. 3d § 771.

107. See The Rise of Airbnb’s Full-Time Landlords, Bloomberg (Nov. 10, 2016), https://www.bloomberg.com/news/articles/2015-11-10/how-airbnb-makes-property-investors-rich-despite-the-neighbors.

108. Statutes and other enactments should not be given a retroactive application unless the legislative intent to do so is clearly apparent. Tevis v. San Francisco, 43 Cal. 2d 190, 195 (1954); see also Melton v. City of San Pablo, 252 Cal. App. 2d 794, 805 (1967) (“From the beginning, it operated in violation of the City’s building codes and continued in violation thereof after the zoning ordinance was enacted. Thus, plaintiff is not entitled to the benefit of the doctrine of pre-existing non-conforming use. He cannot rely on McCaslin v. City of Monterey Park, 163 Cal. App. 2d 339 (1958), where the lawfulness of the use was not in question.”) (citation omitted).

109. The City cited Conejo Wellness Center, Inc. v. City of Agoura Hills, 214 Cal. App. 4th 1534, 1561–62 (2013), as supporting that proposition. Analysis of the case reveals that a medical marijuana center declared a public nuisance by the City under the Medical Marijuana Program Act, Cal. Health & Safety Code § 11362.765, could retroactively be precluded and violations could lead to enumerated penal sanctions. “Furthermore, the MMPA does not expressly forbid local regulation in the area of medical marijuana use and, in fact, expressly contemplates it. As mentioned earlier, the MMPA in its original form provided that ‘[n]othing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article.’ The legislature’s amendment of the MMPA, effective January 1, 2012, eliminates any doubt regarding the propriety of local legislation: the MMPA now expressly permits “civil and criminal enforcement” of local ordinances “that regulate the location, operation, or establishment of a medical marijuana cooperative or collective.” (Citations omitted.)

110. Topanga Ass’n for a Scenic Cmty. v. County of Los Angeles, 11 Cal. 3d 506, 512 (1974).

111. See Hansen Bros. Enters., Inc. v. Bd of Supervisors 12 Cal. 4th 533, 552 (1996) (“When continuance of an existing use is permitted by a zoning ordinance, the continued nonconforming use must be similar to the use existing at the time the zoning ordinance became effective. . . . In determining whether the nonconforming use was the same before and after the passage of a zoning ordinance, each case must stand on its own facts.”).

112. Telecommunications Act of 1996, 47 U.S.C. § 332.

113. Id. § 332(c)(7)(B)(i)(II).

114. Id.; T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 993 (9th Cir. 2009) (“Our holding today therefore harmonizes our interpretations of the identical relevant text in § 253(a) and 332(c)(7)(B)(i)(II). Under both, a plaintiff must establish either an outright prohibition or an effective prohibition on the provision of telecommunications services; a plaintiff’s showing that a locality could potentially prohibit the provision of telecommunications services is insufficient.”).

115. City of Los Angeles v. Gage, 127 Cal. App. 2d 442, 449–50 (1954) (“Ordinance 90.500 is void insofar as it affects Gage’s use of the property in that it deprives him of a vested right to use the property for the purpose it has been used continuously since 1930 and deprives him of property without due process of law.”).

116. Id. at 449–50.

117. Hansen Bros. Enters. v. Board of Supervisors, 12 Cal. 4th 533, 552 (1996); Calvert v. County of Yuba, 145 Cal. App. 4th 613, 623 (2006) (“In light of the state and federal constitutional takings clauses, when zoning ordinances or similar land use regulations are enacted, they customarily exempt existing land uses (or amortize them over time) to avoid questions as to the constitutionality of their application to those uses.  Such exempted uses are listed as nonconforming uses and provide the basis for vested rights as to such uses. . . . Generally, for a nonconforming land use to be allowed to continue, the use must be similar to the use existing at the time the zoning became effective.” (citations omitted)).

118. Hansen Bros., 12 Cal. 4th at 552; Nat’l Advert. Co. v. County of Monterey, 1 Cal. 3d 875 (1970); Livingston Rock v. County of Los Angeles, 43 Cal. 2d 121 (1954).

119. 86 Op. Cal. Att’ys Gen. 30, No. 01-402,  (Mar. 19, 2003).

120. See Big Creek Lumber Co. v. County of Santa Cruz, 15 Cal. App. 4th 952 (2004), remanded, 858 P.2d 567 (Cal. 1993); Cal. Gov’t Code § 65800: “so long as such local programs are compatible and consistent in every detail with the goals and policies of the Coastal Act as established by the Commission through its regulations and administrative decisions over coastal development permits and development as defined in this Act.” (emphasis added).

121. Liam Dillon, The Revenge of the Suburbs: Why California’s Effort to Build More in Single-Family-Home Neighborhoods Failed, L.A. Times (May 22, 2019) (“Powerful interests lined up behind Senate Bill 50, a proposal in the California Legislature to dramatically increase home building near mass transit and in neighborhoods zoned only for single-family homes. On board were labor and business groups, environmentalists and developers, students and retirees, all of whom argued that radical change was necessary to solve the state’s housing affordability crisis.

But an influential cohort of suburban homeowners with membership across the state opposed the measure with all its political might and last week a legislative committee blocked SB 50. . . .”) (emphasis added); Callies, Freilich & Saxer, supra note 35, at 642 (“Increasing [affordable] housing supply requires cities to upzone for higher density. Yet today, one can expect neighbors to object to any such suggestion. These neighbors are well described by several acronyms. First there is the well-known NIMBY (Not in My Backyard); Second, CAVE (Citizens Against Virtually Anything); and Third, BANANA (Build Absolutely Nothing Anywhere Near Anything).”(emphasis added)).

122. Jacobs, supra note 21, at 3 (“Th[is] Article discusses specific cases in which those weaker incentives have been an obstacle to effective protection of coastal resources. It concludes with a proposal for amending the Coastal Act to provide a more robust appeals process when a local government has declined to implement the recommendations of the Commission’s periodic review. This change would increase the incentives for local governments to update their LCPs and enable both the Coastal Commission and Coastal Act policies to play a greater role in the review of coastal development permit applications when a local government has refused to address significant flaws in its certified LCP.”).